All opinions are subject to modification
and technical correction prior to official publication in the North
Carolina Reports and North
Carolina Court of Appeals Reports. In the event of
discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina
Reports and North Carolina
Court of Appeals Reports, the latest print version is to be considered
authoritative.

NO. COA08-128

NORTH
CAROLINA
COURT OF APPEALS

Filed:16 December
2008

FRANCES HUFFMAN, ROGER D.

KENNEDY, MARILYN DAWN KIDD,

THOMAS P. MARSH, FRANKIE

McCASKILL, DEBORAH K. ROGERS,

SHARON P. SCOTT,

Employees,

Plaintiffs,

v.North Carolina
Industrial Commission

I.C.
File Nos. 480967, 481105, 481108,

500200,
509087, 521226, 564609, &

924348

MOORECOUNTY,

Employer,

and

SEDGWICK OF THE CAROLINAS, INC.,

Carrier,

Defendants.

Appeal
by Plaintiffs from Opinion and Award entered 27 September 2007 by the North
Carolina Industrial Commission.Heard in
the Court of Appeals 7 October 2008.

The
Plaintiffs in this case are Frances Huffman, Roger D. Kennedy, Marilyn Dawn
Kidd, Thomas P. Marsh, Frankie McCaskill, Deborah K. Rogers, and Sharon P.
Scott, former MooreCounty employees who worked in the CommunityServicesBuilding owned by the
County.The Defendants in this case are MooreCounty
and its insurance carrier, Sedgwick of the Carolinas, Inc.

From February 1995 to April 1996,
Plaintiffs filed workers’ compensation claims alleging multiple effects of
toxin exposure that occurred while they occupied the CommunityServicesBuilding
owned by MooreCounty.Defendants denied all of the claims on the basis that no injury occurred
and Plaintiffs’ complaints did not arise from causes and conditions
characteristic of and peculiar to their respective employments to which members
of the general public were not equally exposed.

Plaintiffs’ claims were consolidated for
hearing and heard before Deputy Commissioner Crystal R. Stanback . . . [who]
awarded Plaintiffs Scott, McCaskill, Kidd, Huffman, and Rogers permanent and
total disability compensation at their respective compensation rates; and
awarded Plaintiffs Marsh and Kennedy temporary total disability compensation at
their respective compensation rates.Defendants’
appeal to the full Commission resulted in an order denying Plaintiffs’
claims.From that denial, Plaintiffs
appeal[ed] to this Court.

In Huffman
I, this Court “reach[ed] only the issue regarding the Commission’s failure
to make proper findings of fact related to the issue of spoilation of relevant
evidence.”The Court held that the
Commission failed to make findings of fact resolving the conflicting evidence
on the issue, and instead “merely recited what [the witnesses] testified to[.]”This Court reversed and remanded for proper
findings of fact.On remand, the
Commission issued a new opinion which stated that:

In accordance with the directives of the
North Carolina Court of Appeals, the Full Commission has added Findings of Fact
numbers 29 and 30 and modified Finding of Fact number 32.In all other respects the October 25, 2005
Opinion and Award of the Full Commission remains the same.

The Commission’s
Opinion and Award, filed 27 September 2007, again denied Plaintiffs’ claims for
workers’ compensation benefits.Plaintiffs have appealed to this Court.We reverse and remand for “specific findings of fact as to each material
fact upon which the rights of the parties . . . depend.”Hansel v. Sherman Textiles, 304 N.C.
44, 59, 283 S.E.2d 101, 109 (1981) (citations omitted).

“Findings
of fact are statements of what happened in space and time.”State ex rel. Utilities Comm. v. Eddleman,
320 N.C. 344, 351, 358 S.E.2d 339, 346 (1987).For example in the present case, Finding No. 11 states in part that “Dr.
Roy Fortmann and Russ Clayton of Acurex Environmental visited the CSB and met
with Philip Boles, Sam Fields and Bobby Lake[.]”However, “[a] determination which requires
the exercise of judgment or the application of legal principles is more
appropriately a conclusion of law.”Guox
v. Satterly, 164 N.C. App. 578, 582, 596 S.E.2d 452, 455 (2004) (citing In
re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997)).Thus, the statement in Finding No. 104 that “plaintiffs
have not proven that their symptoms were caused by or significantly aggravated
by their employment with defendant-employer” is more properly designated a
conclusion of law.

“This
Court has long recognized that the Industrial Commission is the sole fact
finding agency in cases in which it has jurisdiction and that the finding of
facts is one of the primary duties of the Commission.”Vieregge v. N.C. State University, 105
N.C. App. 633, 638, 414 S.E.2d 771, 774 (1992) (citations omitted).In Thomason v. Cab Co., 235 N.C. 602,
605-06, 70 S.E.2d 706, 709 (1952), the North Carolina Supreme Court stated
that:

It is impossible to exaggerate how
essential the proper exercise of the fact-finding authority of the Industrial
Commission is to the due administration of the Workmen’s Compensation Act.The findings of fact of the Industrial
Commission should tell the full story of the event giving rise to the claim for
compensation.They must be sufficiently
positive and specific to enable the court on appeal to determine whether they
are supported by the evidence and whether the law has been properly applied to
them. . . . [T]he court cannot decide whether the conclusions of law and the
decision of the Industrial Commission rightly recognize and effectively enforce
the rights of the parties upon the matters in controversy if the Industrial
Commission fails to make specific findings as to each material fact upon which
those rights depend.

In the
instant case, the Commission filed an Opinion with more than 100 findings of
fact.Many of these recited or
summarized the witness testimony, but did not state the facts that the
Commission found to exist based on that testimony.By way of example, we note the following
excerpts from the findings of fact:

6.On June 21, 1994, William Pate, an
industrial hygiene consultant . . . inspected the CSB. . . . [In his]
testimony, Mr. Pate explained that carbon dioxide concentrations were well
below the acceptable limit of 1000 parts per million. . . .Mr. Pate testified that he did not see
anything during his inspection that would have caused him concern for the
safety of the employees.

. . .
.

10. . . . [William Pate] testified that on
July 20, 1994, he . . . conduct[ed] air sampling for residual pesticide
concentration in the air and for volatile organic compounds. . . . The test
results of the volatile organic compounds were below the limits specified by
[OSHA] . . . and according to William Pate, may be related to the new paint,
carpet and vinyl flooring.Mr. Pate
testified that these levels would decrease over time.

. . .
.

12. . . . [P]eppermint oil was poured into
the sewer line . . . to determine if there were any leaks in the septic
system.According to Mr. Boles . . . no
peppermint odor [was] detected inside the building.This indicated, according to Mr. Boles, that
. . . the sewer line was pushing air out of the building[.]

. . .
.

15. . . . Acurex Environmental’s report
stated, “it is unlikely that any of the 72 volatile organic compounds targeted
for analysis occur at concentrations of concern in the soil near the locations
where the samples were collected. . . .”

. . .
.

17. . . . [Roy Fortmann, PhD.] testified
that volatile organic compounds were detected in the indoor air samples, but .
. . the concentrations were what would be considered “typical” of . . . an
office building. . . .

. . .
.

24. . . . [Flint Worrell] conducted a
sampling of two septic tanks and two soil samples from the area. . . .
According to Mr. Worrell’s deposition testimony, it would be likely to find
some amount of chemicals inside a septic tank. . . .

. . .
.

26.Samuel W. Fields . . . testified that no
volatile organic compounds or other toxic or pathogenic substances were ever
detected in the CSB at a level in excess of OSHA’s permissible exposure limits
or the ACIGH’s threshold limits value.

39.. . . [P]laintiff [Huffman] testified
that her first episode of sickness occurred when the insulation was being taken
out of the ceiling.She stated that she
experienced a choking sensation and felt as if she could not breathe.Plaintiff further testified that she has had
similar episodes of bronchial spasms and swelling since then[.]

. . .
.

41.Although Dr. Bell testified that plaintiff’s symptoms
could be related to the environment in the CSB, he admitted that each and every
symptom of multiple chemical sensitivity, chronic fatigue syndrome, and
fibromyalgia can be explained by some other illness, either psychological or
physiological.According to Dr. Bell,
causes of fatigue other than chemical exposure could include post Epstein-Barr
virus infection, metabolic abnormalities such as hypothyroidism, anemia,
diabetes, chronic liver and kidney disease; malignant syndromes, depression
and, in his opinion, obesity and sleep apnea.

42.On September 29, 1998, plaintiff
[Huffman] presented to Dr. Howard Jones[.] . . . Dr. Jones opined that there
was insufficient evidence to support a diagnosis other than an obstructive lung
disease, such as recurrent bronchitis.

43.In his report, Dr. Jones stated, “there
is a substantial debate in the scientific community regarding whether chronic
fatigue syndrome or multiple chemical sensitivity syndrome are diagnosable
entities per se, given that in many of these case[s], substantial
functional overlay exists.”

. . .
.

45.Dr. John B. Winfield, a professor at the
University of North Carolina School of Medicine . . .[reviewed] plaintiffs’
medical records and . . . opined that plaintiff’s illness was not caused by
environmental agents to which she may have been exposed while employed in the
CSB[.] . . . Dr. Winfield opined that factors . . . such as obesity, habitual
inactivity, iron-deficiency anemia and psychological variables are more likely
causes of her symptoms.

. . .
.

72. . . [P]laintiff [Scott] testified that
her symptoms included difficulty breathing, sinus infections, fatigue,
fibromyalgia, chemical sensitivity, loss of sleep, cognitive difficulties, and
rashes.She testified that upon
returning to the building twice after renovations, she started having trouble
breathing again. . . .

73.. . . [Dr.] Staudenmayer conducted an
independent psychological evaluation of plaintiff[,] . . . [and] opined that
[Scott] is a “hard-driving woman with personality traits of obsessiveness and
repressed hostility. . . . She also had identifiable traits associated with
obsessive-compulsive personality disorder.”Dr. Staudenmayer opined that to a reasonable degree of psychological certainty
plaintiff’s complaints are psychogenic and are not causally related to
exposures to environmental agents during her employment in the CSB.

74.. . . Dr. John Winfield opined with a
reasonable degree of medical certainty that [Scott’s] illness was not caused by
environmental agents to which she may have been exposed while working in the
CSB.

. . .
.

80.Dr. John Winfield reviewed plaintiff
[Roger’s] medical records and opined that plaintiff’s illness was not caused by
environmental agents to which she may have been exposed while employed in the
CSB since a toxic exposure was not established and the opinions of other
doctors were not supported by the facts of the case or generally accepted
information in medical and scientific literature. . . . Dr. Winfield opined
that more likely than not plaintiff’s fatigue was psychologically based.

. . .
.

91.Dr. Charles Lapp, an internist and a
certified independent medical examiner, . . . testified that the diagnosis of
multiple chemical sensitivity is not a scientifically valid diagnosis. . . .
Dr. Lapp testified that it was “well-accepted that we don’t have a lot of data
in this regard as to the exact cause of multiple chemical sensitivities” and
that it is not yet scientifically proven and at the present time, it is an
idiosyncratic condition caused by unexplained reasons.

94.Dr. John B. Winfield . . . conduct[ed] a
study of 400 patients with fibromyalgia.In his opinion, the ongoing chronic stress and distress from almost purely
psychological factors is at the heart of the physical illnesses exhibited by
the plaintiffs in this case.Dr.
Winfield further opined that very likely plaintiffs would have had the same
symptoms whether or not they had worked in the CSB.

95.. . . Dr. Winfield stated, “scientific
medicine does not accept the pseudoscience and speculation of illness and
causation upon which the opinions of certain health professionals involved in
[this case] have been based. . . . “

These findings merely
recite or summarize witness testimony, but do not state what the Commission
finds the facts to be.Additionally,
general statements by the Commission that it finds a witness “credible” do not
reveal what part of that witness’s testimony the Commission finds as fact.

We
conclude that the Opinion and Award of the Commission must be reversed and
remanded for proper findings of fact.We
reiterate that the above quoted findings of fact are examples only, not a
complete listing of the findings of fact that require review by the
Commission.We also note that expert
testimony in this case reflects the uncertainty about fibromyalgia and multiple
chemical sensitivity that existed when the depositions were taken.However, Plaintiffs originally filed their
workers’ compensation claims more than ten years ago, and in the intervening
years the medical community may have gained a greater understanding of these
conditions.Accordingly, the Commission
may, in its discretion, reopen the case for new evidence.